The county clerk in Kentucky who cited "God's authority" to defy a federal court order to issue marriage licenses to same-sex couples has told the judge that following his order would violate her constitutional due process rights and the federal Religious Freedom Restoration Act.
WND reported Tuesday Rowan County Clerk Kim Davis continued to decline to issue licenses to homosexual duos after the U.S. Supreme Court declined to intervene in her case.
The case is pending at the 6th U.S. Circuit Court of Appeals, but the immediate issue has been whether she must violate her faith and conscience while her case is unresolved.
AP reported Tuesday a homosexual duo refused a license left the Rowan County clerk's office "red-eyed and shaking," even though the duo could at any time obtain a license from more than 100 other locations in the state.
Davis on Tuesday was barraged by catcalls of "bigot" when she met people lined up waiting for services. That's when she cited "God's authority" in continuing to refuse to issue any marriage licenses. She adopted the position when the Supreme Court created "same-sex marriage" in the Obergefell decision in June, so she would not discriminate against anyone.
The judge who issued the order, David Bunning, has scheduled a hearing for Thursday. On Wednesday, lawyers with the nonprofit Liberty Counsel, who have been representing her, submitted arguments that she should not be punished in any way.
"Davis should not be held in contempt because it will violate her due process rights," they explained to Bunning. "As part of her defense to plaintiffs' claims against her, Davis has raised in this action individual claims against the Kentucky governor and KDLA commissioner. … These rights and claims were asserted before this court entered its injunction on August 12, 2015, and they are necessarily intertwined with the rights and claims asserted by plaintiffs against Davis."
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Liberty Counsel told the court that after acknowledging Davis' rights, the court refused to consider them, "effectively denying preliminary injunctive relief … an order that is now also on appeal."
"To enter contempt sanctions when this court refused to permit Davis the opportunity to vindicate her individual rights and claims against Gov. Beshear, and while the terms and validity of the injunction continue to be actively litigated, fails to provide the 'procedural safeguards afford by the due process clause.'"
Liberty Counsel also pointed out to the judge that "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings."
"She therefore specifically demands herein and does not waive any and all rights of those accused of crimes, including but not limited to her right to a jury trial," the attorneys said.
Additionally, the attorneys said "any contempt order issued by this court, which will substantially burden Davis' religious exercise for the same reasons she is unable to comply with the injunction, must satisfy the strict scrutiny analysis required by the federal Religious Freedom Restoration Act."
In essence, that means the government can "burden" a person's religious rights only for overwhelmingly important reasons and not at all if there are accommodations that would meet the demands of the government.
The court was told that, for example, the state could provide an "opt-out" for marriage licensing, "permitting recusal of officials from 'issuing' lawful marriage licenses 'based upon any sincerely held religious objection.'"
Also, a neighboring clerk could be deputized to issue the licenses, Davis' name could be removed from the licenses, the state could distribute the licenses online or Davis simply could be deemed "absent" so the license could be issued by another county officer, Liberty Counsel said.
"Finally, any contempt finding in this matter is premature and improperly intrusive and invasive into state affairs. … 'The federal courts in devising a remedy take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution,'" Liberty Counsel said.
While the Obergefell decision "effectively obliterated Kentucky marriage law, leading Kentucky legislators from both parties in both houses uniformly [to] agree that the legislature needs to address the entire marriage scheme … but also agree that Davis' religious beliefs should be (and can be) accommodated.'"
On Tuesday, when asked on whose authority she would refuse to issue licenses, Davis replied, "Under God's authority."
One homosexual activist said, "We're not leaving until we have a license," AP reported.
"Then you're going to have a long day," Davis reportedly said.
In a statement Davis released shortly after her office opened Tuesday, she said the fight is about religious liberty.
"I have worked in the Rowan County Clerk's office for 27 years as a deputy clerk and was honored to be elected as the clerk in November 2014, and took office in January 2015. I love my job and the people of Rowan County. I have never lived any place other than Rowan County. Some people have said I should resign, but I have done my job well. This year we are on track to generate a surplus for the county of $1.5 million," she said.
"In addition to my desire to serve the people of Rowan County, I owe my life to Jesus Christ who loves me and gave His life for me. Following the death of my godly mother-in-law over four years ago, I went to church to fulfill her dying wish. There I heard a message of grace and forgiveness and surrendered my life to Jesus Christ. I am not perfect. No one is. But I am forgiven and I love my Lord and must be obedient to Him and to the Word of God."
She said the she will continue to serve the people of the county, who elected her.
"I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God's definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God's Word. It is a matter of religious liberty, which is protected under the First Amendment, the Kentucky Constitution, and in the Kentucky Religious Freedom Restoration Act. Our history is filled with accommodations for people's religious freedom and conscience. I want to continue to perform my duties, but I also am requesting what our Founders envisioned – that conscience and religious freedom would be protected. That is all I am asking. I never sought to be in this position, and I would much rather not have been placed in this position. I have received death threats from people who do not know me. I harbor nothing against them. I was elected by the people to serve as the county clerk. I intend to continue to serve the people of Rowan County, but I cannot violate my conscience."
The ACLU of Kentucky, which is representing the same-sex duos, immediately told a federal judge he has no choice but to hold Davis in contempt of court.
AP later reported Rowan County attorney Cecil Watkins said he was informed of a federal court hearing on the issue in Ashland scheduled for 11 a.m. Thursday. Watkins reported Davis and all of the deputy clerks in her office were ordered to attend.
Justice Elena Kagan, who oversees the 6th District, was one of two justices, along with Ruth Ginsberg, who defied conventional judicial ethics and performed a "same-sex wedding" while the Obergefell case establishing the legality of same-sex marriage was under consideration.
She had received the request for a stay in the Davis case and referred it to the whole court.
But the justices late Monday refused to consider Davis' constitutional religious rights and, without comment, refused to act.
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Those who have raised complaints about Davis' refusal to issue licenses to same-sex couples pointedly have bypassed more than 100 other locations in Kentucky where they could obtain licenses.
Liberty Counsel has noted that even the district court, which issued the order against Davis, admitted that the case presented a "conflict" between "two individual liberties held sacrosanct in American jurisprudence."
One was the enumerated right to religious freedom, the other the newly created marriage right.
Staver had argued: "Providing religious conviction accommodations is not antithetical for public employees. Throughout our history, the courts have accommodated people's deeply held religious beliefs.
"The Supreme Court's marriage opinion does not suggest that religious accommodations cannot be made or that people have a fundamental right to receive a marriage license from a particular clerk," he continued, referencing the original opinion.
"There is absolutely no reason that this case has gone so far without reasonable people respecting and accommodating Kim Davis' First Amendment rights," he said.
"The SSM Mandate demands that she either fall in line (her conscience be damned) or leave office (her livelihood and job for three decades in the clerk's office be damned). If Davis' religious objection cannot be accommodated when Kentucky marriage licenses are available in more than 130 marriage licensing locations, and many other less restrictive alternatives remain available, then elected officials have no real religious freedom when they take public office."
The Obergefell decision, in fact, recognized the religious rights of Americans, even while creating the new right to "same-sex marriage."
"Obergefell unanimously held that First Amendment protections for religious persons remain despite SSM," Liberty argued.
In Obergefell, the four dissenting Supreme Court justices – John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito – all warned that creating the new right of same-sex "marriage" would war against the existing right of religious exercise embedded in the U.S. Constitution.
"And here we are, two months later, and it is already happening," Staver said.
Liberty Counsel warned two years ago, Staver said, that religious freedom would be replaced by the new "right" to a "same-sex marriage." They were roundly criticized by the left for resorting to "scare tactics" and "conspiracy theories."
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